Law, Social Justice & Global Development

Theorising Power in Law and Literature

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2. Theorising Power in Law and Literature
In an overview of the intellectual history of law and literature since its foundation in the early 1970s, Minda noted that the movement has become remarkably diverse. In its early days on legal curricula, it was concerned exclusively with law-in-literature and explored ‘how the stories in the classics of Western literature might offer lawyers and judges important lessons about the nature of law.’3 In the late 1970s and 1980s, a second trend of scholarship began to manifest itself and was given the label of ‘law-as-literature’. It was concerned with ‘reading and studying law as if it were a special ‘genre’ of literature to be interpreted like any story… law and literature scholars explored the meaning of law’s language as a cultural and literary artefact.’4
The merits of law and literature have been vigorously contested since it came into existence as a distinct academic field. The exchange between Stanley Fish and Judge Richard Posner sums up the main differences in approach. Posner has argued that ‘after a century as an autonomous discipline, academic law in America is busily ransacking the social sciences for insights and approaches with which to enrich our understanding of the legal system’ but that it is ‘a great false hope’ that literary theory will change the way that lawyers think.’5
Fish brings a number of linguistic and philosophical arguments to bear in making the case for law and literature, the most powerful, and in the context of this paper, the most relevant of which lies in his elucidation of Posner’s notion of power. Fish points out that Posner distinguishes between legal and literary interpretation by invoking the notion of power. Posner’s view is that, in contrast to lawyers and judges, literary critics operate in a context in which it does not matter if their ‘interpretative labors’ are not constrained, for their interpretations have minimal consequences.
‘The critic who interprets an ambiguous work of literature is not imposing his view on anyone else…the court that interprets an ambiguous provision…is imposing its view on the rest of society, often with far-reaching practical consequences.’6
The question of consequentiality is central to the differing approaches taken by, on the one hand, the advocates of law and literature and, on the other hand, its critics. Nonetheless, it is an issue which Fish glosses over:

‘For the moment I am less interested in challenging the distinction between legal and literary consequentiality that in asking for what reason – in the service of what agenda – Posner makes it…’7

Whilst Fish goes on to present a convincing and thorough explanation of Posner’s agenda, this is done at the expense of pursuing the idea of consequentiality. The focus is on Posner’s interest in diminishing the possibilities of law and literature rather than on grappling with the notions of power and consequence. This defensive posture is common in the debates surrounding law and literature and at times dominates to the exclusion of explanatory writing. The proponents of law and literature perceive themselves to be under siege; in the case of Posner’s onslaught, for example, it is said to be orchestrated by those who embrace a law and economics approach. This defensive posture has characterised law and literature’s combative infancy.
This failure to counter Posner’s charge that literary interpretation is a powerless pastime has led to a lack of theorisation of the notion of power in law and literature. In part, the failure to provide an adequate account of power in the task of literary interpretation comes from an unduly narrow conception of the literary which the law and literature movement has adopted. As the label ‘law and literature’ indicates, the movement has been influenced by a 20th century conception of the function of literary criticism. As Eagleton has pointed out:
‘In the eighteenth century…criticism concerned cultural politics; in the nineteenth century its preoccupation was public morality; in our own century it is a matter of ‘literature’.’8
Whilst it may be the case that a literary critic who is engaged in interpreting Wordsworth or Yeats is powerless (and this is arguable) it would be more difficult for Posner to dismiss a widely drawn notion of ‘interpretative labor’ which is concerned not just with the literary text but with the entire field of cultural politics. By severing the connection between literary theory (and the interpretative labours it requires) and the literary text, it is possible to answer the charge that literary criticism is and can afford to be an unconstrained, because powerless, task.
Weisberg has argued that the law and literature enterprise is sufficiently broad to encompass any number of different literary perspectives9 and Minda that ‘there should be ample room under the law and literature umbrella for law-as-literature translations’.10 The aim of this paper is to explore how the idea of law and literature might be reconfigured. Embracing law-as-literature’s refusal to privilege the literary text, this paper moves beyond that position to investigate the interaction of law and cultural politics. In so doing, it hopes to rescue the law and literature enterprise from the combative debates in which is has become mired. If it is to regarded as anything other than a powerless pursuit, lawyers who have embraced literary criticism must confront this attribution head on. This means doing more than revealing the hidden agendas of the movement’s detractors. The idea that the interpretative work of literary theorists has no practical consequences may be countered by embracing a mode of literary criticism which is politically and ethically engaged. This might be done by rethinking, as Eagleton has done, the function of modern criticism and the range of practices to which it might be applied:
‘To claim that ‘literary theory’ does not necessarily derive its raison d’etre from the literary text is not to fall into theoreticism; it is to recognise that what practical effects it might have will be diffused over a much broader field of signifying practice.’11
As Eagleton has pointed out, in the 18th and 19th centuries ‘to be a literary critic was…no politically inconsiderable role. It was certainly not for Johnson, Hazlitt or Taine.’12 Were law and literature to rediscover a ‘substantive social function’13 for criticism, it would insulate itself form the accusation of powerlessness.
What are the implications of this new approach in the context of postcolonial Africa? Elsewhere, I have employed the insights of traditional law and literature to investigate Chinua Achebe’s Arrow of God.14 In that paper I adopted a law-in-literature approach and argued that African literature prefigures many of the issues engaging critics on the wider social scientific terrain. In the social sciences, this is represented by those who problematise law from a postmodern or legal pluralist perspective. In particular, Achebe’s self-imposed task of demythologising parallels that of theorists such as Eric Hobsbawm, Terence Ranger, Martin Chanock and Peter Fitzpatrick. Such theorists have drawn our attention to the dangers involved in the use of law in the construction of community, identity or tradition. Through a study of Arrow of God, the paper discussed Achebe’s treatment of the administrative and political power exercised by the colonial state and showed that the novel’s focus is not simply on the form of power vested in chiefs by the colonial state but also on the epistemic or discursive authority exercised by the colonial administration. The task of demythologising law and colonialism has been undertaken by lawyers, social scientists and novelists alike.
The traditional law and literature approach, by requiring the study of literary texts, restrained an investigation of the range of ideological practices which function to initiate, augment or restrain political development in African societies.

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